Memel Holdings Pty Limited v Pittwater Council

Land and Environment Court (NSW)|2001-05-25|Before: Bignold J, Mr P, Talbot J

The Applicant commissioned Mr Robertson to prepare the Plan "in order to assist in the future development and management of the property": s 1.2.

The stated objectives of the Plan (s 1.3) are as follows:

The primary objectives of this Conservation Management Plan are to: 8.4.1 establish the cultural significance of the property, and 8.4.2 formulate appropriate policies for its conservation, and 8.4.3 prepare a schedule of works for repairs and maintenance in the short and medium term, and 8.4.4 indicate areas of the site which could accommodate expansion of the house to accommodate a more full-time occupation of the property.

Section 4 of the Plan contains its "Assessment of Significance" which was expressed to be "intended to assist in making decisions on the future conservation and any development of the buildings and the site" (s 4.12).

Section 4.4 contains statements of the "cultural significance" of the property. The ensuing assessments of the (i) "historical significance"; (ii) "aesthetic significance"; (iii) "technical (research) significance" and (iv) "social significance" that are ascribed to the property, is in each case "a degree of significance that is rare in the area" (or in some cases in relation to "the State" rather than in relation to "the area").

Section 6 of the Plan which is headed "Constraints" proceeds to detail and assess (i) "constraints arising from the Statement of significance"; (ii) "constraints arising from physical condition"; and (iii) "external constraints".

Included in (i) is the following assessment of constraints arising from the "aesthetic significance" of the property:

6.1.2.2 The building contributes to the townscape and bush setting of this area of Florida Road by its scale, materials, texture and modulation of light through the use of dark-stained timber and stone walls.

The site can be divided into two culturally significant zones based upon the historical use of the site and the subsequent cultural attributes determined by that historical usage:

The first zone comprises the eastern half of the site (ie that part of the site fronting Florida Road) which contains the house, the garage and a landscape of predominantly exotic palm trees. The zone extends behind the house to include the cleared lawn area and is bounded on the western side by a low stone wall which divides the lawn area from the more overgrown and more highly vegetated rear half of the site.

Within the front cultural zone there are distinct areas:

The site in front of the house should be preserved as a landscaped space and the original front fence retained and repaired and the front gate replicated. Relocation of the garage to make it less visibly intrusive and to open up views of the house from the street would enhance the cultural significance of the site.

The area to the south of the house contains a stone path and retaining wall which should be retained. Behind the retaining wall is a lawn area which formerly contained water tanks. This area is suitable for any additions which may be needed to increase the facilities of the house.

The second zone comprises the western half of the site and is characterised by the vegetated, unkempt nature of the garden. Although the vegetation in this half of the site also appears to have been introduced by previous owners/occupiers it provides a vegetated backdrop to the more visibly altered and built-upon front half of the site.

The tree cover on the rear half of the site should be maintained by preservation of the major trees and relocation of the palms within the site if required but without diminishing the appearance of the vegetated backdrop to the house.

The curtilage of the house can thus be defined as the curtilage of built cultural significance terminating at the low stone wall dividing the cleared and cultivated half of the site from the more overgrown, treed half of the site. However, since the visual curtilage extends to the treed backdrop behind the house the trees on the east half of the rear portion of the site should be preserved and maintained and should not be replaced by structures (see Figure 18 ).

A copy of figures 18(a) and (b) is annexed hereto and marked "A" and "B" respectively.

Under the heading "External Constraints" the assessment includes the following statement:

The original client brief for the project was for the house to be retained, repaired and restored.

In order to achieve this goal the client is seeking to ameliorate the burden placed upon it in the form of Land Tax by seeking a subdivision of the site into two lots.

Section 6.4 contains the following "Conclusion to Constraints":

The constraints resulting from the significance of the place and those arising from the condition of the existing house provide parameters for the treatment of the site and fabric of the house.

However, none of these constraints preclude the upgrading of the facilities and accommodation of the existing house by a sensitive addition in the area behind the house as indicated in Figure 18. Also none of these constraints preclude the subdivision of the site and the construction of a sensitive new dwelling on the rear allotment so formed.

Section 7 propounds a number of conservation policies "for the conservation of the site and building".

Those policies include policies in respect of (i) the repair and restoration of the "Moorings" (s 7.2); (ii) additions to "the Moorings" building to be located behind the existing building (s 7.3); (iii) subdivision of the site (s 7.4); and (iv) any new house on the proposed rear lot (s 7.5).

The policies recommended in respect of the possible subdivision of the property are stated as follows: 8.4 PARTICULAR - SUBDIVISION

The following particular policies and actions are recommended for any proposal to subdivide the site into two allotments:

7.4.1 That any subdivision line between the front and rear halves of the allotment should relate to the different character of the two halves of the site.

7.4.2 That the treed vegetated eastern portion of any proposed rear allotment should be preserved as a visual backdrop and part of the visual curtilage of the existing house.

Section 8 of the Plan contains recommendations for "Implementation" of the recommended conservation policies and includes the following passage in respect of any future subdivision of the site:

8.4 PARTICULAR - SUBDIVISION 8.4.1 The subdivision line between the front and rear halves of the allotment relate to the line defining the cultural curtilage of The Moorings. The cultural curtilage is shown on Figure 18 and relates to the front half of the site which contains the existing house, garage, paths, steps and stone walls as well as the cleared portion of the site. The rear half of the site comprises the vegetated backdrop to the front half of the site. D. ADJUDICATION ON THE ISSUES IN DISPUTE

Since it is common ground that the proposed subdivision cannot be approved unless the SEPP No 1 objection is upheld it is appropriate that that objection be first adjudicated upon, and thereafter consideration be given to the planning merits of the proposal (though some of the planning merits also have some relevance to the SEPP No 1 objection).

In terms of the seven issues in dispute earlier recited, this means that my adjudication will proceed by separately considering the following issues in the following order - (i.) Issues 2, 3 and 4 - SEPP No 1 objection (ii.) Issues 1, 5 and 7- impact of proposal on heritage items; (iii.) Issue 9 - Access to proposed Lot 11 via Livistona Lane (i.) The SEPP No 1 objection

Before considering the objection, I should note that I have included in this bracket of issues Issue 3 which concerns the Council's Interim Subdivision and Development Policy 7.2.49 even though it has no direct relevance to the objection which is solely directed to the requirements imposed by cl 11(2) of the LEP.

The Council's "Interim Policy for Subdivision of Lands in Sensitive Areas" was adopted by the Council in 1991 and has apparently "been consistently applied to the area north of Mona Vale Road…." (vide the Report of Mr John Raven to the Council's Development Unit Meeting held on 2 March 2000 (Exhibit 4) at which the development application was refused).

According to the text of the Policy - it is to be applied "until such time as it can be included as either a Draft Local Environmental Plan or an Amendment to a Local Environmental Plan". Its stated requirements relevantly include the following: b) A person shall not subdivide land within Zone No. 2(a) if the allotment or allotments intended to be created have a slope in excess or 30% measured between the highest and lowest points on any such allotment(s). c) A person shall not subdivide land in a sensitive area unless each allotment so created has an area of not less then 1,200 sq. m.

It is common ground that the development site qualifies as "land in a sensitive area" within the meaning of the Policy by virtue of its slope exceeding 23 per cent.

The impact in the present case of the Council's Interim Policy lies beyond the scope of the objection to the development standard prescribed by cl 11(2) of the LEP. It is relevant to the determination on the planning merits of the development application: vide the EP&A Act, s 79C.

Coming to the objection pursuant to SEPP No 1, as I have earlier noted, Mr Ingham propounded a new objection in the light of Talbot J's consideration of the Senior Commissioner's judgment as it related to the Applicant's original objection pursuant to SEPP No 1.

The newly propounded objection is contained in Appendix V of Mr Ingham's addendum Report (Exhibit AR). Since the written objection comprises eight typed pages, I shall here merely summarise its content.

By way of prefatory comment, Mr Ingham notes that whereas in his original SEPP No 1 objection he had accepted that the stated aim of cl 11 of the LEP also expressed the aim or object of the development standard created by cl 11(2), he had reconsidered that assumption and had concluded that this was not "necessarily the case".

He then explains his changed position which is to the effect that the object of the minimum lot size development standard "is to ensure that future development is consistent with the existing character of the locality". On the basis that this is the objective of the development standard prescribed by cl 11(2) of the LEP, Mr Ingham explains why he concludes that the proposed subdivision is consistent with that objective or aim, namely that in the locality the existing character reflects a wide range of lot sizes. More particularly: (i.) In the immediate vicinity of the development site there are 78 lots ranging in size from more than 3,000 m2 down to 480 m2. Of the 78 lots, there are 19 having an area of less than 700 m2, including the two lots immediately adjoining the development site to the north which have sizes of 588 m2 and 696 m2 respectively. Of the 78 lots there are 18 lots having an area in excess of the 1,200 m2 minimum prescribed by the Council's Interim Subdivision Policy. (ii.) In the locality, the common feature of the existing character of residential development is the predominance of vegetation over built form, which feature is not purely the result of the creation and maintenance of large sized lots. (iii.) The proposal will not reduce the "conservation status of the area" by virtue of (a) the proposal to restore the "Moorings" building; and (b) the proposal that any development on the rear land (proposed Lot 11) be not significantly visible from Florida Road, the only public vantage point from which the conservation status can be appreciated. (iv.) The proposed development would result in a spatial separation between the "Moorings" and the proposed new dwelling on the rear land (Lot 11) consistent with development in the area (particularly that existing development on the subdivided land situate immediately to the north of the development site). (v.) The future dwelling-house development of the proposed rear lot would be compatible with existing building forms in the area and have an appropriate relationship with Livistona Lane.

Additionally (and alternatively lest his revised opinion on the object of the development standard be rejected), Mr Ingham expresses the opinion that the proposed subdivision is consistent with the stated aim of cl 11 of the LEP for the following reasons: (i.) the size of the proposed lots, being less than the prescribed minimum lot size of 700 m2 increases the opportunity to create more varied lot sizes; (ii.) the proposed subdivision will improve residential amenity and enhance the environment by virtue of the following: · it will result in the restoration of an item of environmental heritage and therefore improve the quality of the Florida Road streetscape; · it will improve the quality of the existing vegetation on the site and the locality through the removal of weeds; · it will assist in improving services and facilities in the area through Section 94 contributions; · it will improve infrastructure through the kerbing and guttering and sealing of roads; · it will increase the population of the area, assisting to make public transport and local shops more viable; · residential amenity will not be reduced subject to appropriate controls on future development to ensure that buildings maintain an appropriate degree of existing vegetation, sited so that the existing amenity afforded to adjacent properties is generally retained.

Having reasoned that the proposed subdivision is consistent - both with the assumed object of the development standard and the stated aim of cl 11(2) of the LEP, Mr Ingham opines that strict compliance with that standard is unreasonable or unnecessary in this case for that reason, in combination with the following additional reasons -
There is an absence of environmental harm associated with the proposal.
The variation of the standard is minor.

In support of reason 2, Mr Ingham's written objection states the following: · it retains the majority of existing trees on the site; · it maintains and improves an existing dwelling-house, reducing the need for additional resources; · it does not have any impact on significant flora or fauna; · it will result in benefits to the environment through weed removal; · it provides an appropriate building area that allows development that will not reduce the environmental or visual quality of the area; and · it provides an appropriate building area that allows development that will not unreasonably reduce the residential amenity afforded to surrounding properties

In support of reason 3, Mr Ingham's written objection states that the sizes of the proposed lots "are only marginally' less than 700 m2 - proposed Lot 11 being 4 per cent below the prescribed minimum and proposed lot 12 being 8 per cent below the prescribed minimum.

In respect of these "minor variations" Mr Ingham opines that the upholding of the objection "will not create a precedent for similar development in the area" for reasons associated with the development site itself and for the reason that in the immediate locality, there are only three other lots, having an area of between 1300 to 1400 m2 of which only the adjoining lot to the south of the development site, has the benefit of dual road access (such as is enjoyed by the development site) but because the development (comprising the dwelling-house "Tidapa") of that lot (which is included in the Florida Road Conservation Area) is located at the rear of the lot, any subdivision of the lot would be objectionable on account of the likely impact on the conservation status of the lot of any subdivision which would result in the locating of any new dwelling-house on the Florida Road frontage (unlike the present case where the new dwelling would be located on the rear lot and hence be substantially screened from view from Florida Road on account of the existence of "the Moorings" located nearer to the Florida Road frontage).

Opposing Mr Ingham's opinions in respect of the objection pursuant to SEPP No 1 are the opinions of Mr Harvey Sanders, Consultant Town Planner contained in his Report (Exhibit 2). In particular, Mr Sanders rejects Mr Ingham's revised view of the underlying object of the development standard and disagrees with the reasons advanced by Mr Ingham in support of his alternative opinion based upon the stated aim of cl 11 of the LEP.

Mr Sanders makes a preliminary observation that by virtue of the proposed right-of-footway 1 m wide along the northern boundary of proposed lot 12, appurtenant to the rear Lot 11, it would be appropriate in a planning sense to exclude from the area of proposed lot 12 that part so affected, thereby reducing the practical area available to proposed lot 12 to 604 m2. This, I think is a fair comment, based upon a practical understanding of the express exclusion contained in cl 11(2) of the LEP of "any access corridor". Even though the area of the right of way remains within proposed lot 12 in a legal sense, the area of lot 12 is in a practical and planning sense, corresponding reduced by the area of the right-of-way.

Mr Sanders opines that the proposal does not achieve the underlying objectives to provide "improve(d) residential amenity" and "enhance(d) environment" but particularly on account of the fact that "the proposed allotments are not of sufficient size to accommodate two residential dwellings in a manner consistent with the site constraints and the Council's controls and at the same time, maintain appropriate relationships with the neighbouring residential properties". He concludes (par 5.11):

The subdivision of the subject site, will erode existing levels of residential amenity and the environment of the site and the locality

The reasons for Mr Sanders' conclusions which are fully expounded in his written report (Exhibit 2), may be summarised as follows: (i.) There are a number of physical constraints affecting any residential development of the proposed rear lot (Lot 11) including (a) its steep slope (38 per cent); (b) the existence of significant on-site vegetation (including that located nearer to "The Moorings" which has landscape heritage significance for the building; and (c) access (vehicular and pedestrian) difficulties. Added to these physical constraints are the planning constraints on development imposed by DCP LP4. In combination, these identified constraints significantly reduce the likelihood of the ultimate residential development of the two proposed lots achieving the objective of an improved residential amenity and an enhanced environment. (ii.) Any future development of the rear lot (Lot 11) would be likely to seek to maximise ocean views by the removal or reduction of the existing vegetation, including the heritage significant vegetation that provides the visible landscape backdrop to "The Moorings". (iii.) The Conservation Management Plan prepared by Mr Robertson is flawed, in planning terms, inasmuch as it severs from the curtilage to "The Moorings" the significant landscape backdrop by including that section of the development site within the proposed rear lot (Lot 11) and thereby inevitably places at risk the preservation of that landscape backdrop to "The Moorings" because its future is in the control of the owner of Lot 11 whose likely interests to maximise ocean views will be in conflict with the preservation of the landscape backdrop for the benefit of "The Moorings". (iv.) The proposed right-of-way for pedestrian access along the northern boundary of proposed lot 12 appurtenant to the rear Lot 11 will involve the removal of significant vegetation by the need for the provision of a pathway and stairway (involving an overall rise in land levels of some 24 m from the Florida Road frontage to the rear of proposed Lot 11) and will involve a significant invasion of privacy of "The Moorings" development and especially the open spaces located to the front and rear of "The Moorings". (v.) In respect of any residential development of the rear Lot 11, there is a potential for invasion of privacy of the adjoining heritage item "Back O'Moon" by virtue of the proximity to the side boundary of elevated deck(s) providing vantage places for scenic ocean views. (vi.) Upon analysis of the existing subdivision patterns in the vicinity of the development site, only 19 of 78 lots were less than 700 m2 in area. Of these 19 lots, six appeared to have been created in the original subdivision and the other 13 were generally the result of re-subdivision of existing lots in the form of battle-axe shaped lots. Accordingly, undersized lots were the exception, not the norm. Moreover, if attention be focused upon the Florida Road Conservation Area, of the eight properties forming that area, all lots except for the land situate immediately north of the development site (which had been subdivided pursuant to Council approval granted in 1951) had land sizes in excess of 1,000 m2. It follows from these analyses that the proposal is inconsistent with the prevailing subdivision patterns both in respect of the wider area (comprising 78 lots) in the vicinity of the development site and the Florida Road Conservation Area.

In addition to his conclusion that the proposed subdivision did not fulfil the underlying objectives of the development standard created by cl 11(2) of the LEP, Mr Sanders expressed the opinion that it was not possible to determine the proposal's impact on the heritage significance of the development site because of the lack of certainty concerning the future residential development of the proposed rear lot (Lot 11). For this reason, he was of the opinion that a subdivision proposal should not be considered independently of a development application for the erection of a new dwelling on the proposed rear lot. He considered such a joint or concurrent development proposal was necessary in order that there be a proper assessment of the heritage impact of such development conformably to cl 32(3) to cl 32(5) of the LEP.

The Applicant rejects this additional opinion by relying upon the terms of the Conservation Management Plan, both in respect of the restoration of "The Moorings" and more particularly, the parameters or criteria established for any future residential development of the proposed rear Lot 11.

Additionally, the Applicant points out that there is nothing in cl 32 that compels the submission of a joint or concurrent development application for the subdivision of the land and for a new residence to be erected on the proposed rear Lot 11.

Whereas I accept the Applicant's submission that there is no legal compulsion for there to be a concurrent development application for the subdivision of the development site and for the erection of a residence on the rear lot, there is much practical good sense in Mr Sanders' suggestion. Moreover, it cannot be denied that the question of the future residential development of the proposed rear lot featured most prominently in the case, having been placed fairly and squarely "on the agenda" by the express terms of the Conservation Management Plan, the relevant parts of which, as I have earlier indicated, are to be given obligatory force by virtue of the imposition of the proposed Condition 28.

It is not uncommon in the context of consideration of a development application for the subdivision of land for consideration to be given to the question of the future development of the subdivided lots: see Ingham Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68 and Shoalhaven City Council v Lovell (1996) 136 FLR 58.

In the present case, the Applicant has sought to show principally by its evidence from Mr Robertson of indicative new dwelling schemes for the rear lot, that such new development is achievable within the physical and planning constraints of the development site and within the parameters or criteria specified for such development by the Conservation Management Plan.

Whereas such evidence may be accepted as being sufficient for present purposes (ie for the determination of the proposal for the subdivision of the development site into two lots), two resultant facts pose some conflict inter se, namely - (i.) the rear lot is likely to be sold without there being in existence any development consent for a new dwelling (which consent is likely to be sought by the purchaser for the dwelling of his or her choice), but subject to the existence of condition 28 imposed on the grant of development consent for the subdivision of the development site; and (ii.) development consent will be required before any new dwelling may be erected on the rear land conformably to the requirements of the LEP.

The conflict is simply this - to what extent will condition 28 constrain the type and nature of any new dwelling proposal on the rear lot for which development consent would be necessary. An allied question concerns the operation of cl 32(4) of the LEP - to what extent will the Conservation Management Plan be relied upon in fulfilment of the obligation imposed upon the Council "to consider a conservation plan that assesses the impact of the proposal on the heritage significance of the item and its setting, or of the heritage conservation area" (my emphasis).

Since the statutory obligation attaches to the "proposal", it would appear that a further conservation plan would be required in respect of the precise development proposal, the subject of the future development application. If this is so, the question arises as to whether any future conservation plan may be materially different from the present Conservation Management Plan, and if so, what is the continuing and future value of that Plan.

A related problem arises as to the extent to which the obligations created by Condition 28 (imposed upon the grant of development consent for the subdivision of the development site) would be binding upon a future developer of the rear lot. By its own force (and the force of the EP&A Act), the condition would probably not be binding or enforceable. To guarantee a binding and enforceable obligation, this condition would probably need to be translated into a restrictive covenant registered on the title to Lot 11, pursuant to the Conveyancing Act 1919.

The foregoing questions highlight the difficulty of seeking to determine at the present time the appropriate form of residential development of the rear lot. That difficulty vindicates the practical wisdom of Mr Sanders' alternative opinion but without any concomitant legal insistence or compulsion, for that approach to be adopted in the present case.

Reverting to Mr Sanders' primary opinion and conclusion, the Applicant relies not only upon Mr Ingham's competing opinions, but upon the evidence of Mr Robertson and Mr Staas, each a Heritage/Conservation Architect in respect of the heritage impact of the proposed subdivision. Additionally, the Applicant relies upon the fact that the Council's Heritage Advisor had raised no objection to the proposed subdivision on heritage grounds, subject to Section 7 of the Conservation Management Plan being incorporated in the conditions of consent.

In her file note the Council's Heritage Advisor added the following comment:

However should the application be refused on other grounds, in the aim to conserve the heritage item, consideration could be given to additions or dual occupancy development under cl 37 of the LEP. Most importantly any future development must comply with the Conservation Management Plan.

The Applicant also relies upon the affidavit evidence of Mr Wade Hewett sworn 15 May 2000 which deposes to the following facts: - (i.) he is a director of the Applicant which owns the development site; (ii.) until the past decade he had regularly used the property as a holiday house; (iii.) he had recently sought relief from land tax and had been informed by the Commissioner of State Revenue that the property had since 1993 been assessed on a reduced value pursuant to the Land Tax Management Act, s 60 and there appeared to be no other legitimate provision allowing for further relief; (iv.) that rental income received from the property had been steadily reducing over recent years - in 1999 net income was $905; (v.) he had found it increasingly difficult to maintain the property and was not able to refurbish the property unless the development application proceeded; (vi.) if development consent were granted, he intended to modernise the heritage item.

I interpose in relation to Mr Hewett's affidavit evidence that it came into existence after the Council had determined the development application, that its contents were not part of the Conservation Management Plan and that it did not form part of Mr Ingham's written objection pursuant to SEPP No 1 - other than for Mr Ingham's opinions that the proposal would result in the refurbishment of the heritage item ("the Moorings") and hence the enhancement of the conservation status of the Florida Road Heritage Conservation area.

In Mr Ingham's earlier statement (Exhibit U) that had been tendered at the original hearing before the Senior Commissioner, he had addressed Issue 10 (that I have earlier recited) raised by the Council in those proceedings (but not raised by the Council on the re-hearing) in the following terms:

It is not claimed that the subdivision is appropriate only because it will result in the refurbishment of the existing heritage item. I am of the opinion that the proposed subdivision is appropriate on its merits. This opinion does not rely on the fact that as a consequence of the subdivision, the heritage item would be refurbished.

However, I do believe that it is a matter that can be considered in assessing the impact of the subdivision on the existing heritage item. Whilst it has been indicated that the proposal will have no adverse impacts on the significance of this item, it should also be acknowledged that the subdivision will provide the significant benefit of refurbishing the item, as recommended in the CMP. Due to the estimated cost of the refurbishment works (in the vicinity of $280,000), without subdivision approval, it is far less likely that the building will repaired, particularly if the property remains in the same ownership. A further complicating factor is that even when refurbished, the amount of accommodation is limited and is likely to be required to be increased.

Council's heritage planner has confirmed that the above situation (ie refurbishment of small historic holiday homes) is a problem generally in the Palm Beach area. In this regard there are no provisions in the LEP which address this problem. Whilst the LEP does include a clause aim to encourage conservation of heritage items, it does not strictly apply to situations such as that detailed in the subject application. As noted, I am of the opinion that the proposed subdivision is appropriate regardless of the refurbishment. However, I would support the attitude that where heritage items will be refurbished as a result of subdivision, that a bonus be provided if the form of the allowance of a variation to the minimum lot site (subject to there being no unreasonable impacts on the heritage item, adjoining properties or the locality in general). This would be consistent with the principles of the conservation incentive clause of the LEP.

I have dealt with this matter at some length to show that in the Applicant's objection pursuant to SEPP No 1 is not founded upon the necessity to dispense with the development standard in order that the heritage significance of "the Moorings" can be enhanced by its restoration to be funded by the proceeds of sale of the proposed subdivided rear lot.

The Applicant's case has properly drawn attention to the fact that if the proposed subdivision is approved, it will generate funds by the sale of the rear lot, which can be devoted to the restoration and refurbishment of "The Moorings". But this is to focus upon a consequent result (and undoubtedly a beneficial result) of the grant of development consent rather than providing a basis or foundation for upholding the Applicant's objection pursuant to SEPP No 1, which has been propounded upon bases which do not include the necessity, in terms of heritage conservation, for dispensing with the development standard imposed by cl 11(2) of the LEP.

The result is that although the objection pursuant to SEPP No 1 is not founded upon the necessity for dispensing with the development standard for the purpose, or with the object, of providing a source of funding (by virtue of the sale of the rear lot) to attain the restoration and refurbishment of "the Moorings", that consequence (secured by the Applicant's willingness to submit to condition 28) is a relevant consideration in assessing the heritage impact of the proposed subdivision in the manner that Mr Ingham legitimately includes it as a factor contributing to his opinion that the proposal "will improve residential amenity" and "enhance the environment".

Having carefully considered all of the evidence, I have concluded that the Applicant's objection pursuant to SEPP No 1 is not well founded.

In so concluding, I have generally preferred Mr Sanders' opinions to Mr Ingham's competing opinions. In particular, I have not been satisfied that the proposed subdivision fulfils or satisfies the underlying objective of the development standard imposed by cl 11(2) of the LEP, whether that objective be considered to be (a) that which is essentially related to the stated aim of cl 11 (ie to improve residential amenity and enhance the environment) which accords with Mr Sanders' understanding of the objective and with Mr Ingham's alternative (and less preferred view); or (b) to ensure future development is consistent with the existing character of the locality (which is Mr Ingham's revised and preferable opinion).

Whereas I am inclined to the view that the underlying objective of the development standard is essentially related to the stated aim of cl 11 (which I think is the view expressed by Talbot J when upholding the s 56A appeal against the Senior Commissioner's judgment), I am prepared to additionally consider Mr Ingham's revised understanding of the underlying objective of the development standard.

In respect of the latter understanding, I am firmly of the opinion that the proposed subdivision is not consistent with the existing character of the locality and in particular with the 78 lots in the vicinity of the development site and even more particularly with the eight lots comprising the Florida Road Conservation Area. Each of these reference points clearly demonstrates the overwhelming preponderance of lots having areas in excess of the prescribed minimum size of 700 m2, but generally having areas less than 1,400 m2 sufficient to enable re-subdivision into lots conforming to the prescribed minimum area size.

The significance of the existing subdivision pattern (which generally reflects the pattern of the original residential subdivision in Palm Beach) in turn highlights the significance of the development standard prescribing a minimum lot size of 700 m2, namely that the minimum lot size prescribed inevitably means that there is very little capacity for there to be changes to the existing subdivision pattern in the Palm Beach area. There are some limited opportunities for re-subdivision of very large lots as recognised in the DCP-LP4, but generally speaking, the prevailing lot sizes, though significantly larger than the prescribed minimum of 700 m2 are less than would permit re-subdivision creating conformably minimum sized lots. These facts operating in combination, inevitably mean that the existing pattern of residential subdivision in Palm Beach (which was generally created prior to the introduction of town planning controls) is generally settled with little opportunity for re-subdivision (except for very large lots) and the prevailing pattern of the residential subdivision is that lot sizes are generally significantly larger than the prescribed minimum area of 700 m2.

The existence of the two smaller lots, located on the northern boundary of the development site, is essentially explained by past history - the subdivision was approved in 1951 (prior to the commencement of relevant town planning controls on residential lot sizes) and it constitutes a result that is clearly inimical to the Florida Road Conservation Area, and the heritage item comprising the dwelling "Back O' Moon". It is a result that is extremely unlikely to be replicated in the Conservation Area whilever the heritage provisions of the LEP apply and its historical existence provides no current justification or precedent for a similar result on the development site.

Accordingly, I must reject Mr Ingham's opinion that the proposed subdivision is consistent with the existing character of the locality. In my judgment, the proposal is clearly inconsistent with that character, and the more so in the case of the character of the eight properties comprising the Florida Road Conservation Area.

Turning to the alternative understanding of the underlying object of the development standard imposed by cl 11(2) of the LEP, I am of the opinion that the proposal does not fulfil or satisfy that object (ie of improving residential amenity and of enhancing the environment).

In so finding, I accept Mr Sanders' opinions that the proposal would inevitably detract from the residential amenity of the "The Moorings" by virtue of the proposed right-of-way extending along the northern boundary of proposed lot 12 and would seriously compromise and threaten the heritage significant landscape backdrop to The Moorings". These adverse impacts on the residential amenity of "The Moorings" would not, in my judgment, be adequately compensated by the contingent restoration and refurbishment of "The Moorings".

Likewise, I accept Mr Sanders' opinions that the physical and planning constraints applying to any development of the rear lot (11) would be likely to detract from residential amenity of that lot (especially in view of the most unsatisfactory pedestrian and vehicular access arrangements for that lot) and from the residential amenity of the adjoining residences "Back O'Moon" (to the immediate north) and "Tidapa" (to the immediate south).

At the present time, those two residences, being located at the rear of the respective lots, adjoin the vacant, but highly vegetated, rear section of the development site with the obvious advantages of the absence of any nearby dwelling and the presence of dense vegetation.

Both these conditions contribute to the existing residential amenity of those houses and the proposal will involve a significant modification or change to those existing conditions with the inevitable detraction of existing residential amenity enjoyed by these two residences.

Just as I have found that the proposal will not "improve residential amenity", similarly I find for the same or similar reasons that the proposal will not enhance the environment. This is because it will introduce into the area two lots below the prescribed minimum lot size which are out of character with the predominantly residential subdivision character of the area (and more particularly, the Florida Road Conservation Area), and because there will be a significant clearing of vegetation to accommodate any new dwelling on the rear lot and an inevitable threat to the preservation of the heritage significant landscape backdrop to "The Moorings".

In respect of vegetation and tree clearance from the development site, the Applicant's case which emphasises the fact that many of the trees on the development site (including those that form the landscape backdrop to "The Moorings") are exempt from the Council's prevailing Tree Preservation Order (Exhibit K) being designated therein as "Undesirable Plants" has overlooked the fact that cl 32(1)(a) of the LEP requires development consent for the "damaging or moving" of a tree within a heritage conservation area.

Accordingly even though many of the trees on the development site are exempt from the Council's Tree Preservation Order, their existence is protected by the heritage controls in force under cl 32(1) of the LEP.

For all the foregoing reasons, I find that the proposal is not consistent with, and does not fulfil or satisfy, the underlying object of the development standard imposed by cl 11(2) of the LEP.

In respect of the two additional reasons relied upon by Mr Ingham in support of the objection under SEPP No 1, I find that the proposal does not involve only a "minor variation" of the development standard.

For the reasons I have earlier given, it is appropriate to exclude from the area of proposed lot 12 the amount of land along its northern boundary required for the provision of the right of way appurtenant to the rear lot. Whereas the size of the two proposed lots when measured by reference to the prescribed minimum area of 700 m2 may be said to be proximate thereto, the result is different if comparison is made to the size of residential lots in the prevailing character of existing subdivision patterns at Palm Beach (where the lots are generally significantly larger than 700 m2) or to the minimum size of 1200 m2 prescribed by the Council's Interim Subdivision Policy for Sensitive Lands.

Whereas these further comparisons are not directly relevant to the objection or to the development standard, they are relevant matters in the consideration of the planning merits of the proposed subdivision, and they highlight the small size of the proposed lots.

The other reason, advanced by Mr Ingham, namely "the absence of environmental harm" by the proposal does not, in my judgment, provide by itself any justification for upholding the objection under SEPP No 1.

For all the foregoing reasons, I hold that the Applicant's objection pursuant to SEPP No 1 that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case is not well founded.

It follows from this finding that the development appeal must be dismissed for non-compliance with cl 11(2) of the LEP.

In view of this conclusion, I shall deal but briefly with the other disputed issues which to some extent have already been considered in my determination on the Applicant's objection pursuant to SEPP No 1. (ii.) Heritage Impact of the Proposal

In large measure, these issues have already been considered in the course of my adjudication on the Applicant's objection pursuant to SEPP No 1.

Whereas the case has proceeded on the basis of the Applicant's unchallenged evidence concerning heritage impact, Mr Sanders' evidence as a town/environmental planner (and not a heritage/conservation architect/planner) has, I think drawn legitimate attention to three potential adverse heritage impacts which I do not think the Applicant's heritage experts or the Conservation Management Plan have fully answered. These impacts are - (i.) The severance from the curtilage of "The Moorings" of the heritage significant landscape backdrop with the attendant risk to the preservation of that backdrop inevitable from the fact that it is contained within the rear lot (11) and its retention may be inimical to the interests of the owner of that lot to maximise magnificent ocean views from the new dwelling; (ii.) the re-subdivision of the development site violates the integrity of the retention of the original lots comprising the Florida Road Conservation Area (except for the 1951 approved subdivision of the lot occupied by "Back O'Moon" - which subdivision, of course, occurred well before the creation of the Florida Road Conservation Area); and (iii.) likely privacy intrusion of any new dwelling on the rear Lot 11 into the two residences "Back O' Moon" and "Tidapa".

In my judgment, each of these potentially adverse heritage impacts raises a significant concern and in combination, that concern intensifies to the point of involving an unacceptable heritage impact, notwithstanding the content of the Conservation Management Plan. (iii.) Access to Lot 11 via Livistona Lane

Again, this issue has been considered in the course of my adjudication on the Applicant's objection pursuant to SEPP No 1.

In my judgment, the proposed access arrangements for Lot 11 are very unsatisfactory.

Pedestrian access from Florida Road via the proposed right-of-way along the northern boundary of Lot 12 not only will involve a significant intrusion into the privacy of "The Moorings", but will require any pedestrian to climb stairs or steps involving an overall elevation change of some 24 metres (ie equivalent to a 7-8 storey building).

Vehicular access via Livistona Lane, a public road created in 1937, is similarly unsatisfactory.

The rear lot of the development site would involve traversing Livistona Lane for a distance of some 120-140 m from its junction with Palm Beach Road along a carriageway, having a constructed width of between 3.5 m and 5 m and having a gradient near the development site of approximately 18 per cent.

At the present time, Livistona Lane (which terminates adjacent to the "Tidapa" property immediately south of the development site) provides an unsatisfactory standard of public road vehicular access for the occupants of four to five dwellings, most of which have street frontages, but no physical access, to Pacific Road.

The unsatisfactory nature of the level of service provided by Livistona Lane was emphasised by two existing residents of properties fronting Pacific Road, but solely relying upon vehicular access via Livistona Lane. Their opposition to the proposed subdivision was mainly focussed on the inevitable exacerbation of access arrangements if the rear lot of the development site were developed by a new dwelling as proposed.

Although Livistona Lane has a width of some 6 m, its constructed carriageway is much narrower and this constraining condition is compounded by virtue of the existence of stone steps serving a residence in Pacific Road located within the road reserve opposite the development site.

It is obvious that emergency vehicles (eg ambulances etc) and garbage collection trucks could not gain ready access along Livistona Lane.

Although the Applicant called two consultant traffic engineers who regarded the proposed access arrangements as being satisfactory, I prefer the evidence of Mr Brisby, the Council's Senior Engineer (Exhibit 7) that the existing arrangements would not provide a satisfactory level of service for a public road (as opposed to a private laneway) without significant upgrading, including the provision of an end turning circle and of passing bays and the provision on proposed Lot 11 of visitor car parking spaces.

In my opinion, the unsatisfactory vehicular access arrangement for proposed Lot 11 (coupled with the equally unsatisfactory pedestrian access from Florida Road), militates against the creation of a lot at the rear of the development site. E. CONCLUSIONS AND ORDERS

For all the foregoing reasons I make the following orders:
Appeal dismissed.
Development consent refused.
Exhibits be returned.
No order as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Memel Holdings Pty Limited v Pittwater Council (No 3) [2001] NSWLEC 240 APPLICANT: Memel Holdings Pty Limited PARTIES : RESPONDENT: Pittwater Council FILE NUMBER(S) : 11035 of 1999 CORAM: Bignold J KEY ISSUES: Development Application :- proposed subdivision of land into lots below minimum size prescribed by LEP - objection pursuant to SEPP No 1 - land within Conservation Area under LEP. LEGISLATION CITED: State Environmental Planning Policy No 1 - Development Standards CASES CITED: Ingham Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68; Shoalhaven City Council v Lovell (1996) 136 FLR 58 DATES OF HEARING: 23-25 May 2001, 19 June 2001 DATE OF JUDGMENT: 10/17/2001

(2000) 110 LGERA 217

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